BIRU v. STATE OF HIMACHAL PRADESH — 1982 DIGILAW 45 (HP)

JUDGMENT T. R. Handa J.:— The sole prayer made in this petition for habeas-corpus received through jail is that this Court should issue an appropriate direction to the concerned authority to allow the petitioner the benefit of section 428 of the Code of Criminal Procedure and set off the entire period of his pre-conviction detention against the term of sentenced actually imposed upon him and which the petitioner is presently serving out. 2. The petitioner claims that he was arrested on 4.7.1980 in connection with the investigation of a case registered under sections 376/452/456/109/34 IPG with Police Station Saddar Mandi Vide First Information Report No. 147 of 1980. He remained in police custody up to 9.7.1980 whereafter he was remanded to judicial custody. It appears that the petitioner was involved in some other criminal case also which were pending trial at the time of his arrest. 3. The petitioner applied for his release on bail in the case registered vide F.I.R. No. 147 of 1980 pertaining to Police Station Saddar Mandi. That application of the petitioner was accepted and in pursuance thereof he furnished the requisite bail and surety bonds which were accepted by the Court on 29.12. 1980. The petitioner, however, was not actually released from custody even after the acceptance of his bail and surety bonds as in the mean time he had been sentenced to imprisonment in some other case, 4. Later after the conclusion of the trial of the case registered vide F.I.R. No. 147 of 1980 referred to above the Sessions Judge Mandi vide his judgment and order dated 22.4.1981 convicted the petitioner under section 451 IPC and sentenced him to undergo imprisonment for two years and to pay a fine of Rs.500 and in default of payment of fine to undergo further imprisonment for six months. Consequent to this order of conviction and sentence recorded by the Sessions Judge, the petitioner was by a warrant issued by the Sessions Judge committed to Model Central Jail Nahan to serve out his sentence. The warrant, however, does not specify the period to which the petitioner was entitled as set off under section 428 of the Code. 5. Consequent to this order of conviction and sentence recorded by the Sessions Judge, the petitioner was by a warrant issued by the Sessions Judge committed to Model Central Jail Nahan to serve out his sentence. The warrant, however, does not specify the period to which the petitioner was entitled as set off under section 428 of the Code. 5. On the basis of some information received by him, the petitioner has his apprehension he may be allowed set off for his pre-conviction detention only for the period from 4.7.1980, the date of his arrest in the course of investigation of this case up to 29.12,1980, the date on which he was ordered to be released on bail in this case but could not be so released as in the meanwhile he had been convicted and sentenced to a term of imprisonment in another case. It is this apprehension of the petitioner which has moved him to approach this Court with the present petition. 6. The petition was put up before us on 15.7.1982 when we called for the records of the case in which the petitioner was sentenced (case arising out of FIR No. 147 of 1980 of Police Station Saddar Mandi). We have satisfied ourselves from the record that the petitioner was arrested in this case on 4.7.1980 and he remained under detention for the entire duration of investigation, inquiry and trial of the case which lasted from 4.7.1980 to 22.4.1981. We also find that the petitioners bail application was granted and he furnished his bail bond and surety bonds which were duly accepted by the Court on 29.12.1980. We further find from the record that the petitioner was not released in pursuance to the acceptance of such bail and surety bonds as in the meantime lie had been sentenced to undergo imprisonment in some other case. We also find that the warrant vide which the petitioner was committed to jail is silent on the point whether the petitioner was entitled to set off of any period of his pre-conviction detention. 7. Now the source of the petitioners information leading to his apprehension that the entire period of his pre-conviction detention may not be set off against the term of imprisonment imposed upon him has not been disclosed. 7. Now the source of the petitioners information leading to his apprehension that the entire period of his pre-conviction detention may not be set off against the term of imprisonment imposed upon him has not been disclosed. We have however, reason to assume that such apprehension is founded on the fact that after his initial arrest on 4-7.1980 in the course of or in connection with the investigation of the case registered vide F.I.R. No. 147 of 1980, the petitioner was allowed bail in that case and his bail and surety bonds were duly accepted by the Court on 29.12.1980. In the meanwhile, however, the petitioner was convicted in another case and sentenced to imprisonment for a term. It was on account of this conviction and sentenced that he could not be released in pursuance to the order allowing his release on bail. Further detention of the petitioner after 29.12.1980 was, therefore, not connected with or on account of the investigation, inquiry or trial of the case registered vide F.I.R. No. 147 of 1980 but the same was on account of the sentenced of imprisonment imposed upon him in another case. 8. We are of the view that even on the facts narrated above and irrespective of the source of his information, the apprehension of the petitioner that he may not be allowed set off for the full term of his pre-conviction period is ill founded. However, since a doubt has been expressed in certain quarters, we consider it proper and desirable to clarify the legal position with respect to the true interpretation and scope of section 428 of the Code of Criminal Procedure which is the relevant provision dealing with the subject. This section reads : "428. However, since a doubt has been expressed in certain quarters, we consider it proper and desirable to clarify the legal position with respect to the true interpretation and scope of section 428 of the Code of Criminal Procedure which is the relevant provision dealing with the subject. This section reads : "428. Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him." A plain reading of the provision extracted above would show that the period of detention, if any, undergone by an accused person during investigation inquiry or trial of the case in which he is subsequently convicted and sentenced to imprisonment for a term, is to be set off against the term of imprisonment imposed upon him on such conviction and his liability to undergo imprisonment on such conviction is to be restricted to the remainder, if any, of the term of imprisonment imposed on him. To put in other words what is required to be set off under section 428 against the term of imprisonment imposed on an accused person is the entire period of his detention suffered by him prior to the date of his conviction and after the commencement of the investigation of the case in which he is convicted and sentenced to imprisonment for a term and against which set off is to be allowed. The section does not qualify the expression "detention." It however enjoins that the pre-conviction detention which is to be allowed as set off must have been suffered by the accused in connection with the investigation, inquiry or trial of the very case in which the set off is claimed. The section does not qualify the expression "detention." It however enjoins that the pre-conviction detention which is to be allowed as set off must have been suffered by the accused in connection with the investigation, inquiry or trial of the very case in which the set off is claimed. The section as enacted, in our view, takes into its sweep every tupe of pre-conviction detention undergone by the accused person who is later convicted and sentenced to imprisonment for a term and the period of such detention must be allowed as set off against the imprisonment ultimately imposed, irrespective of the fact whether such detention was in connection with the same case or it was in connection, with some other case. All that the section requires is that the period of such pre-conviction detention which can be set off against the term of imprisonment must not be prior to the commencement of the investigation and after the conclusion of the trial of the case in which set off is climed. Any other interpretation of this provision would amount to reading some thing into the section which is simly not there. 9. In view of our observations made above we hold that the entire period from 4.7.1980 to 22.4.1981 during which period the petitioner remained under detention and during which the case in question remained under investigation, inquiry or trial must be set off against the term of imprisonment imposed upon him. We accordingly direct the Superintendent, Model Central Jail Nahan to compute the period of detention of the petitioner accordingly, 10. Before parting with this case we would like to emphasize that the trial Courts while convicting an accused person and sentencing him to imprisonment for a term, must specify in their order the period of pre-conviction detention if any, that the accused might have suffered and issue appropriate directions providing for set off of such period of pre-conviction detention against the term of imprisonment imposed so that the liability of me accused to undergo imprisonment is restricted the remainder, if any, of the term of imprisonment imposed upon him as enjoined by Sec. 428. An endorsement should always be made on the warrant of commitment vide which the accused is committed to jail specifying if any period of pre-conviction detention is to be set off against the term of imprisonment imposed on the accused and if so the quantum of such period. The jail authorities on their part while receiving a prisoner must ensure that such an endorsement does find mention in the warrant and in case it is not there they must make a back reference to the court concerned and ask for the requisite information. Any lapse or omission on the part of the court or the jail authorities in not observing the above procedure may in some cases result in the accused person suffering illegal detention entailing serious consequences. Order accordingly.